In 2001, I founded Judging the Environment, now a Defenders of Wildlife project, to help protect environmental laws, including provisions allowing citizens to sue when these laws are violated, and ensure fair federal judicial nominations. An important part of all this is pointing out and correcting erroneous statements about the Endangered Species Act, and rebutting unjustifiable attacks on the ESA and court decisions.

As an avid duck hunter and sitting Supreme Court justice, Antonin Scalia knows something about the Nixon-era Endangered Species Act. And what he knows most–the court’s OK of the Environmental Protection Agency’s expansion to cover animal habitat–he considers illegal.

“It’s just a terrible interpretation,” Scalia said at a Tuesday event to promote the new book he co-authored, “Reading Law: The Interpretation of Legal Texts.”

Bedard erroneously claimed that Scalia was describing “the EPA’s decision to expand the act beyond the ‘taking’ or injuring or killing of endangered animals to protecting their habitat. The expansion led the court before Scalia joined in 1986 to OK protecting the habitat of animals ….”

Although Bedard presented Justice Scalia as knowledgeable about the ESA and its interpretation, Bedard’s article on Justice Scalia was just plain wrong on some of the most basic facts. The column was wrong on the agency (it was the U.S. Fish and Wildlife Service at the Department of the Interior, not the EPA), the year of the Court’s decision (1995 not 1986), and even Justice Scalia’s role in this case that interpreted the ESA — he was on the Court at the time, and he wrote a dissenting opinion.

But most importantly, Bedard quoted Justice Scalia as mocking the Court’s decision by stating that “Injuring in that context does certainly not mean destroying the habitat. Nobody would think that that’s ‘taking’ an animal.” This is where the facts are most vital, because the Endangered Species Act specifically defines a prohibited “taking” to include “harm.” The Court merely upheld an Interior Department rule spelling out that “harm” includes habitat destruction that “actually kills or injures wildlife.”

Marbled Murrelet (Credit: Rich MacIntosh/USFWS)

And rightfully so. As I wrote in a letter to the editor, animals, like people, can be harmed or injured by destroying the food and shelter they need to survive.
That’s not just my feelings on the matter, it’s scientific fact and essential to protect endangered and threatened species. For example, in 1996, a court of appeals prevented logging in a marbled murrelet nesting area that would likely harm the endangered birds by “impairing their breeding and increasing the likelihood of attack by predators.”

Courts routinely decide whether to uphold, strike down, enforce, rewrite, or gut species and environmental protection laws; the 2007 case in which four dissenting justices attempted to rewrite the Clean Air Act to exclude greenhouse gases is just one of many examples. The Supreme Court continues to be narrowly yet deeply split in deciding how to interpret statutes and the Constitution in environmental cases.

The fate of the ESA and other fundamental environmental laws depends on courts, and therefore on fair, informed, and independent Justices and judges. So it’s important to set things straight when a Supreme Court Justice’s reported comments leave out vital information and would unjustifiably limit the ESA in a way that would result in extinctions of protected species.

According to the ESA, the Department of the Interior and the Supreme Court, preventing injury to endangered animals does mean preserving the feeding grounds, breeding grounds, and shelter they need to survive. In this case, facts matter — and so do habitats.

Glenn heads the environmental community's Judging the Environment project and website www.judgingtheenvironment.org, which works with other progressive groups on federal judicial selection and related issues such as access to court.

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